Indian Treaties: a Bibliography*

LAW LIBRARY JOURNAL Vol. 107:2 [2015-10] Indian Treaties: A Bibliography* Beth DiFelice** This bibliography describes sources for research into treaties between the U.S. government and Indian tribes, focusing on primary sources. The sources are preceded by an overview of the treaty process and the termination of the government’s power to enter into treaties with Indian nations. Overview of the Indian Treaty Process ..................................243 Congressional Termination of the Treaty Power ..........................243 How Many Indian Treaties? ...........................................244 Ratified Versus Nonratified Treaties ....................................245 Oral Traditions .....................................................245 Treaty Compilations .................................................246 Lists of Treaties .....................................................249 Treaty Proceedings ..................................................250 Congressional Documents ............................................250 Statements by Tribal Leaders ........................................250 National Archives .................................................251 Collections of Congressional Documents .............................251 Journal of the Executive Proceedings of the Senate .....................252 Congressional Committee Hearings ..................................252 Debates of Congress ...............................................252 Presidential Documents ............................................253 War Department Records .............................................253 Office of Indian Affairs ............................................254 Territorial Records ...................................................255 General Guides to U.S. Government Publications .........................255 Court Records ......................................................255 Indian Claims Commission ...........................................255 Digital Archives .....................................................256 Library of Congress ..................................................257 Maps .............................................................257 National Archives ...................................................258 Tribal Records ......................................................258 * © Beth DiFelice, 2015. ** Associate Director and Head of Public Services, Ross-Blakley Law Library, Arizona State University, Tempe, Arizona. 241 242 LAW LIBRARY JOURNAL Vol. 107:2 [2015-10] ¶1 This bibliography describes sources for research into treaties between the U.S. government and Indian tribes, focusing on primary sources. Treatises and journal articles on the topic of Indian treaties are excluded. In addition, while many of the printed sources described in this bibliography are also available online through commercial vendors, particularly HeinOnline’s American Indian Law col- lection, only free online resources are listed here. ¶2 Most of the sources discussed are documents produced by U.S. government officials. “The historian of the American Indian faces a difficult task. He is attempt- ing to reconstruct Indian history from sources which are almost exclusively the product of white soldiers, traders, missionaries, and government officials. These documents reflect the ethnocentricity one would expect.”1 ¶3 The bibliography is intended to be a resource both for scholars and for law- yers involved in litigation over treaty rights. Although the last treaty was signed in 1868, Indian treaties continue to be subjects of litigation today. The historical primary sources listed here can be useful in determining and proving the meaning of treaty terms. ¶4 Treaties were written and negotiated in English, so language often presented an obstacle to tribes’ understanding of treaty terms.2 Not only were words and concepts used in a treaty difficult or impossible to translate into the tribe’s language, but, “[a]s linguistic anthropology has revealed, people who speak different languages may see the world differently or at least talk about it differently. Certain concepts may not translate perfectly between cultural groups.”3 When ambiguous language in an Indian treaty is at issue in a case, courts, as a general rule, will liber- ally construe the language in favor of the tribe and as the tribe would have understood the terms of the treaty at the time of the signing. Courts will seek to deter- mine the meaning of the language at the time and the general historical context.4 1. William T. Hagan, On Writing the History of the American Indian, 2 J. INTERDISC. HIST. 149, 149 (1971) (reviewing four books on American Indian history). 2. See, e.g., United States v. Bouchard, 464 F. Supp. 1316, 1323 (W.D. Wis. 1978), rev’d sub nom. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir. 1983) (“The accounts of what was said, of course, are only of what was understood by the white men. Van Antwerp commented after one particularly clumsy passage in his notes: ‘This of course is nonsense but is given literally as rendered by the Intrepeters (sic) who are unfit to act in that capacity. I pre- sume it to mean . .’” (final ellipsis in original)); United States v. Washington, 384 F. Supp. 312, 330 (W.D. Wash. 1974), aff’d & remanded, 520 F.2d 676, 685 (9th Cir. 1975) (“The treaties were written in English, a language unknown to most of the tribal representatives, and translated for the Indians by an interpreter in the service of the United States using Chinook Jargon, which was also unknown to some tribal representatives. Having only about three hundred words in its vocabulary, the Jargon was capable of conveying only rudimentary concepts, but not the sophisticated or implied meaning of treaty provisions about which highly learned jurists and scholars differ.”). 3. Kristen A. Carpenter, Interpretive Sovereignty: A Research Agenda, 33 AM. INDIAN L. REV. 111, 115 (2008–2009) (footnote omitted). 4. See, e.g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970) (“[T]reaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them . and any doubt- ful expressions in them should be resolved in the Indians’ favor.”). Vol. 107:2 [2015-10] INDIAN TREATIES: A BIBLIOGRAPHY 243 Overview of the Indian Treaty Process ¶5 It is helpful to understand how negotiation and ratification of treaties occurred before looking for documents created during that process. Treaties were negotiated and signed by representatives of the tribe and U.S. treaty commissioners and then sent to the Secretary of War (until 1849) or the Secretary of Interior (after the Interior Department was created in 1849), accompanied by a letter of transmit- tal and sometimes a report on the negotiations and terms of the treaty, or even a journal of the treaty proceedings.5 ¶6 The treaty was then forwarded to the President with a report by the Secretary of War or Interior. The President would send the treaty to the Senate for its consid- eration and approval. The Senate might approve the treaty as is, approve it with amendments, reject it, or table it.6 The Senate’s decision “was sent to the president in the form of [a Senate] resolution, with the original treaty attached.” When the Senate approved a treaty, the President would sign a proclamation of ratification.7 Without these actions by the Senate and the President, the treaty was not ratified and, thus, was not considered in force by the United States.8 Once ratified, treaties were sent to the State Department for filing and safekeeping.9 ¶7 The House of Representatives was not involved in the treaty ratification process. However, treaties involving the disbursement of government funds required appropriations legislation, which had to be approved by both the House and the Senate. Therefore, treaty ratification was often followed by appropriations legislation originating in the House of Representatives.10 Congressional Termination of the Treaty Power ¶8 The President’s power to enter into treaties with Indian nations was termi- nated by Congress in 1871. This was done by an appropriations bill originating in the House of Representatives, which provided: Hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.11 5. FRANCIS PAUL PRUCHA, AMERICAN INDIAN TREATIES: THE HISTORY OF A POLITICAL ANOMALY 432 (1994). 6. Id. at 434. 7. Id. 8. See Siegfried Wiessner, American Indian Treaties and Modern International Law, 7 ST. THOMAS L. REV. 567, 582–83 (1995). 9. See Prucha, supra note 5, at 521. 10. See William E. Mikell, The Extent of the Treaty-Making Power of the President and Senate of the United States, 57 U. PA. L. REV. 435, 449 (1909). 11. Act of Mar. 3, 1871, ch. 120, 16 Stat. 544, 566 (codified as amended at 25 U.S.C. § 71 (2012)). 244 LAW LIBRARY JOURNAL Vol. 107:2 [2015-10] ¶9 The last Indian treaty entered into was the 1868 treaty with the Nez Perce tribe.12 Although not included in this bibliography, it is worth noting that the U.S. government continued to enter into agreements with Indian tribes after

Load more